United States v. Sioux Nation of Indians

No. 79-639. Argued March 24, 1980. Decided June 30, 1980. 448 U.S. 371.

B

The Government contends that the Court of Claims erred insofar as its holding that the 1877 Act effected a taking of the Black Hills was based on Congress' failure to indicate affirmatively that the consideration given the Sioux was of [448 U.S. 410] equivalent value to the property rights ceded to the Government. It argues that

"the true rule is that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe" Brief for United States 52.

The Government derives support for this rule principally from this Court's decision in Lone Wolf v. Hitchcock. In Lone Wolf, representatives of the Kiousa, Comanche, and Apache Tribes brought an equitable action against the Secretary of the Interior and other governmental officials to enjoin them from enforcing the terms of an Act of Congress that called for the sale of lands held by the Indians pursuant to the Medicine Lodge Treaty of 1867, 15 Stat. 581. That treaty, like the Fort Laramie Treaty of 1868, included a provision that any future cession of reservation lands would be without validity or force "unless executed and signed by at least three fourths of all the adult male Indians occupying the same." Id. at 585.

The legislation at issue, Act of June 6, 1900, 31 Stat. 672, was based on an agreement with the Indians that had not been signed by the requisite number of adult males residing on the reservation. This Court's principal holding in Lone Wolf was that "the legislative power might pass laws in conflict with treaties made with the Indians." 187 U.S. at 566. The Court stated:

"The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians, it was never doubted that the power to abrogate existed in Congress, [448 U.S. 411] and that, in a contingency, such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians" Ibid. {27}

The Court, therefore, was not required to consider the contentions of the Indians that the agreement ceding their lands had been obtained by fraud, and had not been signed by the requisite number of adult males. "[A]ll these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts." Id. at 568. In the penultimate paragraph of the opinion, however, the Court in Lone Wolf went on to make some observations seemingly directed to the question whether the Act at issue might constitute a taking of Indian property without just compensation. The Court there stated:

"The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederate tribes of Kiousas, Comanches and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U.S. 294, decided at this term, where it was held that full administrative power was possessed by Congress over Indian [448 U.S. 412] tribal property.

"In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises.

"In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional" Ibid.

The Government relies on the italicized sentence in the quotation above to support its view

"that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe" Brief for United States 52.

Several adjoining passages in the paragraph, however, lead us to doubt whether the Lone Wolf Court meant to state a general rule applicable to cases such as the one before us.

First, Lone Wolf presented a situation in which Congress "purported to give an adequate consideration" for the treaty lands taken from the Indians. In fact, the Act at issue set aside for the Indians a sum certain of $2 million for surplus reservation lands surrendered to the United States. 31 Stat. 678; see 187 U.S. at 555. In contrast, the background of the 1877 Act

"reveals a situation where Congress did not "purport" to provide "adequate consideration," nor was there [448 U.S. 413] any meaningful negotiation or arm's-length bargaining, nor did Congress consider it was paying a fair price"220 Ct.Cl. at 475, 601 F.2d at 1176 (concurring opinion).

Second, given the provisions of the Act at issue in Lone Wolf, the Court reasonably was able to conclude that "the action of Congress now complained of was but . . . a mere change in the form of investment of Indian tribal property." Under the Act of June 6, 1900, each head of a family was to be allotted a tract of land within the reservation of not less than 320 acres, an additional 480,000 acres of grazing land were set aside for the use of the tribes in common, and $2 million was paid to the Indians for the remaining surplus. 31 Stat. 677-678.

In contrast, the historical background to the opening of the Black Hills for settlement, and the terms of the 1877 Act itself, see Part I, supra, would not lead one to conclude that the Act effected "a mere change in the form of investment of Indian tribal property."

Third, it seems significant that the views of the Court in Lone Wolf were based, in part, on a holding that "Congress possessed full power in the matter." Earlier in the opinion, the Court stated:

"Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government" 187 U.S. at 565.

Thus, it seems that the Court's conclusive presumption of congressional good faith was based in large measure on the idea that relations between this Nation and the Indian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in takings cases, and was expressly laid to rest in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 (1977).{28} [448 U.S. 414].

Fourth, and following up on the political question holding, the Lone Wolf opinion suggests that, where the exercise of congressional power results in injury to Indian rights, "relief must be sought by an appeal to that body for redress, and not to the courts." Unlike Lone Wolf, this case is one in which the Sioux have sought redress from Congress, and the Legislative Branch has responded by referring the matter to the courts for resolution. See Parts II and III, supra.

Where Congress waives the Government's sovereign immunity, and expressly directs the courts to resolve a taking claim on the merits, there would appear to be far less reason to apply Lone Wolf's principles of deference. See United States v. Tillamooks, 329 U.S. 40, 46 (1946) (plurality opinion).

The foregoing considerations support our conclusion that the passage from Lone Wolf here relied upon by the Government has limited relevance to this case. More significantly, Lone Wolf's presumption of congressional good faith has little to commend it as an enduring principle for deciding questions [448 U.S. 415] of the kind presented here. In every case where a taking of treaty-protected property is alleged,{ 29} a reviewing court must recognize that tribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that

"this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in . . . a guardianship, and to pertinent constitutional restrictions" United States v. Creek Nation, 295 U.S. at 109-110. Accord:

Menominee Tribe v. United States, 391 U.S. 404, 413 (1968); FPC v. Tscarora Indian Nation, 362 U.S. 99, 122 (1960); United States v. Klamath Indians, 304 U.S. 119, 123 (1938); United States v. Shoshone Tribe, 304 U.S. 111, 115-116 (1938); Shoshone Tribe v. United States, 299 U.S. 476, 497-498 (1937).

As the Court of Claims recognized in its decision below, the question whether a particular measure was appropriate for protecting and advancing the tribe's interests, and therefore not subject to the constitutional command of the Just Compensation Clause, is factual in nature.

The answer must be based on a consideration of all the evidence presented. We do not mean to imply that a reviewing court is to second-guess, from the perspective of hindsight, a legislative judgment that a particular measure would serve the best interests of the tribe. We do mean to require courts, in considering whether a particular congressional action was taken in pursuance of Congress' power to manage and control tribal lands [448 U.S. 416] for the Indians' welfare, to engage in a thorough-going and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry.

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